APRIL, 1810. veyances was changed by an act of the legislature,) must be settled by the decisions of that time; and admitted, that the intention of the testator (which it also decides is to be collected Sadler's heirs. from the will itself) must not prevail against the settled rules of Wyatt V. construction. As well, therefore, on the ground of the principles declared by the Court in the said case of Kennon v. M'Robert, as of those precedents by which the Court professed in that case to be govern ed, I have no hesitation in saying that only an estate for life passed in the estate before us, and that the judgment of the District Court is erroneous, and ought to be reversed. A contrary decision in this case (considering that almost all wills have these formulary words of introduction in them) would go the length of repealing the rule aforesaid altogether, in relation to these testamentary conveyances; and that by the mere power of the Court, when the power of the Legislature only was deemed competent to make the change in relation to their prototype, (common law conveyances,) and was exercised prospectively only, (from the 1st of January, 1787,) leaving all prior conveyances to stand by the rules antecedently established; as the Court, (in the case of Kennon v. M‘Robert,) has also expressly held, as aforesaid, should be the case in relation to wills prior to the period aforesaid. That case itself, therefore, seems to me a conclusive authority in favour of a reversal in the present in stance. Judge FLEMING stated the case, and proceeded as follows. The only question is, whether William Wyatt (the younger son) took an estate in fee, or for life only, in the lands bequeathed to him? Under the feudal system in England an arrangement was made of the various tenures by which lands were to be holden. It was natural to suppose that technical forms would not always be attended to; and hence it became necessary to provide a rule for cases where the duration of the estate was not described. The rule under the feudal system was, that conveyances of an estate in land, without words of inheritance or limitation, passed only an estate for life. After the statutes of the 32d and 34th of Henry VIII. a more liberal construction, and extensive latitude has been allowed, in the construction of wills respecting lands, than in conveyances APRIL, 1810.. Wyatt by deed; on account of the former being often made in extremity, where counsel, skilled in the technical terms of the law, were not to be had: and, therefore, the intention of the testator is to prevail in every case where it does not contravene some Sadler's heirs. known and established rule of law. Lord Holt, and other Judges in more modern times, emphatically call that intention the polar star by which our decision is to be guided. And Justice Buller, in delivering his opinion in the case of Hodgson v. Ambrose, Douglas, 341. noticed what Lord Hardwicke truly said, in Bagshaw v. Spencer, 1 Vez. 142. 2 Atk. 577. "there can be no magic or particular force in certain words, more than others; their operation must arise from the sense they carry." And, he added, "I say, that sense can only be found by considering the whole will together. That is the first and great rule in the exposition of all wills; and it is a rule to which all others must bend. It says, if not inconsistent with the rules of law :' but it must be remembered that those words are applicable only to the nature and operation of the estate or interest devised, and not to the construction of the words. A man cannot, by will, create a perpetuity, put the freehold in abeyance, nor limit a fee upon a fee, &c. But the question whether the intention be consistent with the rules of law, or not, can never arise till it is settled what the intention was; and, if it be apparent, I know of no case that says a strict legal construction, or a technical sense of any words whatever, shall prevail against it." Nor, in my apprehension, shall the want of a technical word frustrate the intention of a testator, where it is apparent upon the face of the whole will taken together. Lord Mansfield, in the case of Mudge v. Blight, Cowper, 355. after noticing that, at common law, a deed, without words of limitation, conveys to the donee only an estate for life, adds, “but I really believe that almost every case determined by this rule, as ap plied to a devise of lands in a will, has defeated the real intention of the testator. Notwithstanding this, where there are no words of limitation, the Court must determine in the case of a devise affecting real estate, that the devisee has only an estate for life. But, as this rule of law has the effect I have just mentioned, in defeating the intention of the testator, in almost every case that occurs, the Court has laid hold of the generality of other expressions in a will, where any such can be found, to take the devise V. APRIL, 1810. Wyatt V. ་ out of this rule. Therefore, if a man says 'I give all my estate, that has been construed to pass a fee: or even if words of locality are added as 'all my estate at A.' it has been held that the whole Sadler's heirs. of the testator's interest in such particular lands will pass, though no words of limitation are added. 2 P. Wms. 524. So in the case of Hogan v. Jackson, from Ireland, the Court had no difficulty in saying that the words all my wordly substance,' in the introductory part of the will, meant every thing the testator had, and that the words all his real effects, in the subsequent residuary devise, were equivalent to worldly substance, and carried every thing to the residuary devisee. In general," (adds Lord Mansfield,) "wherever there are words and expressions, either general or particular, or clauses in a will, which the Court can lay hold of, to enlarge the estate of a devisee, they will do so, to effectuate the intention. But, if the intention of the testator is doubtful, the rule of law must take place." In the case before us, I have no doubt but the intention of the testator was to pass a fee to both his sons. First, because in the introductory part of the will he uses this expression; “and as to what worldly goods it hath pleased God to give me, I leave and bequeath as followeth ;" and immediately proceeds to dispose of his lands, in the first clause of his will; manifesting thereby his idea that the words worldly goods, comprehended all his worldly possessions, and were tantamount to the words all his worldly estate; and it seems agreed on all hands, that, had he used the word estate, instead of goods, a fee would have passed to his son William; (see Davies v. Miller, 1 Call, 127. and Watson v. Powell, 3 Call, 306.) and, to my mind, the latter was as expressive of his intention as the former would have been. We frequently find men, who are unacquainted with the technical terms of the law, using the word goods, to signify estate; a recent instance has occurred, during the present term of this Court, in the will of William Murray, in the preamble of which he expressed his intention of disposing of all his worldly goods, and immediately proceeded to bequeath (not devise) his lands. In the case before us, the testator, after giving his wife a life in his lands, adds, " Item, after the decease of my wife, I give and bequeath to my sons Richard and William Wyatt all my land, to be equally divided between them, Dragon Swamp and all," manifesting thereby, in my apprehension, his intention that his sons should be equal, not only respecting the quantity, but also the interest they were to enjoy in his lands; which was an absolute fee. He then directs his still, likewise, to be between them, for their own use, and after, to his son Richard; that being an article, which, if divided, would be rendered useless to both sons. On this view of the case, even from the English authorities, it appears to me that William Wyatt took a fee in the lands bequeathed to him by his father's will; but, if not, the case of Kennon v. M'Robert, in this Court, and the subsequent cases of Davies v. Miller, and Watson v. Powell, seem to have put it beyond a doubt. I am therefore of opinion, that the judgment of the District Court ought to be affirmed. By a majority of the Court, the judgment was AFFIRMED. APRIL, 1810. Wyalt V. Sadler's heirs. Johnson and others against Johnson's Widow and Heirs. Wednesday, May 9. lands might THIS was a suit in Chancery in the County Court of South- 1. A fee-simampton, by the widow and children of Robert Johnson the ple estate in younger, against Edmund Johnson, grandson, and heir at law of pass by a will Robert Johnson the elder, and Joseph and Lemuel Jones, purchasers from the said Edmund, to recover of them a tract of land devised to Robert Johnson the younger, by the will of the said Robert the elder, bearing date September 4, 1772, and admitted to record the 12th of the same month. (even before the act of 1785, c. 62.) without words of perpetuity, or any tents provided words equiva it appeared, from thewhole will taken to such was the illiterate tes The clauses on which the controversy turned were, "I gave gether, that and because to my son Robert Johnson, 120 acres of land that I intention of bought of James Kitchen, and 1 cow and 1 calf," &c. proceed the testator. ing to mention several other articles of personal property. "I 2. Where an give and because to my grandson Edmund Johnson, 5s. I give tator uses the and because all the rest of my worldly estate to my well beloved sume words in disposing of wife Martha Johnson, to be at her dispoon ingurin of her life or his reul, as in widowhood, and afterwards to my son Britain Johnson, to him his persona! for ever." disposing of property, and in the same clause of the he intended to The bill set forth that, although there are no words of perpe- will, it is fair tuity in the devise of the land to Robert the younger, the plain- to infer that tiffs could prove that the testator, at the time of making the will, told Joseph Bradshaw, the writer thereof, to give the said give them the 120 to both kinds same effect as of property. APRIL, 1810. Johnson V. Johnson's acres of land to his son Robert, and his heirs; and this, they contended, was strongly corroborated by every devise and bequest contained in the will. They prayed a decree for the land, (as being entitled under Robert the younger, he having died intestate,) and for general relief. The defendants relied on their construction of the will, as giving to Robert the younger, an estate for life only, and, immediately upon the death of the testator, the reversion in fee to Edmund Johnson, his heir at law. They denied any knowledge of the testimony of Joseph Bradshaw, but believed that, even if it were as stated by the plaintiff, the Court should disregard it. The only depositions taken were those of Council Johnson and Sarah Johnson, proving declarations by the testator some time previous to his death, that he intended to have his will altered, and give the plantation that he bought of James Kitchen, to his son Robert Johnson, jun. The County Court decreed the land to the plaintiffs, and, on an appeal to the Superior Court of Chancery for the Williamsburg District, Chancellor TYLER was of opinion, "that, upon a fair construction of the will of Robert Johnson the elder, it was his intention that Robert Johnson the younger, his eldest son then living, should have an absolute interest in the tract of land devised to him, in the same manner as he intended the said Robert should enjoy the personal property devised to him in the same clause wherein the land is devised;" and that there was no error in the said decree, except that the County Court should have decreed the dower of the appellee Mary, in the said land, to be assigned to her; partition of the said land (subject to the said dower) to be made among the children of the said Robert Johnson the younger; and an account to be taken of the rents and profits of the said land whilst in the possession of the appellants. He therefore affirmed the decree as far as it went, and remanded the cause for farther proceedings; from which decree an appeal was taken to this Court. Call, for the appellant, made two points; 1. A life-estate only passed to Robert Johnson the younger. This is a mere naked case of a devise of land to a son, (not being heir at law,) without any words of perpetuity, and without any words in the preamble to supply their place. None of the cases come up to this. It |